Rebuff those malpractice lawyers’ traps and tricks!

Henry M. Lerner, MDDr. Lerner is Clinical Instructor in Obstetrics and Gynecology at Harvard Medical School. He is a former member of the board of directors of ProMutual, a medical malpractice insurer, and has been an expert witness in ObGyn medicolegal cases for the past 15 years. He practices ObGyn medicine at Newton-Wellesley Hospital, Newton, Mass.

Courtroom rules doesn’t favor defendants, and plaintiff attorneys will paint you as incompetent and uncaring. Don’t despair! You can prepare for the attack and counter it.

The author reports that he is president of Shoulder Dystocia Litigation Consultants, working with defense lawyers, insurance company case managers, and hospital risk managers in shoulder dystocia-related injuries and litigation.

CASE

You are a defendant in a malpractice case, and your lawyer has just finished questioning you—the “direct” part of your testimony. She asked you straightforward questions and you answered fully and without interruption. You were able to explain, at length, your account of what happened during the events in question. This is the first time you’ve been sued; you’re nervous, but things have gone well so far, you feel.

Cross-examination by the plaintiff’s attorney comes next. He starts aggressively, questioning the quality of your training and experience. Have any disciplinary actions ever been taken against you by your hospital or the state licensing board? Did you have specialty fellowship training? He makes it seem that, if you didn’t, you have no business taking care of patients.

He drills in: Have you taken courses in the specific area at question in the case—as if whole courses are given routinely on the narrow topics that are often the subject of litigation, whether shoulder dystocia, placental abruption, damage to a ureter, or other bad outcomes.

He moves on to ask about details of the case but cuts you off when you try to flesh out your answers. He admonishes you: Listen to the question and answer “Yes” or “No”!

He begins to raise his voice.

The attorney attacks your notes in the medical record; he makes them seem incomplete and inadequate. He tells members of the jury that they can assume that you did not take a specific action, despite your claim to the contrary, because it’s not in the record: “If it wasn’t written down, it didn’t happen.”

His demeanor becomes more confrontational. The increasingly abusive questioning goes on and on, and your sense that things are going well has evaporated.

How, you ask yourself as the assault continues, did all this rancor and accusation come on so fast and so unexpectedly?

This scenario, or versions close to it, occurs all too often to physicians in courtrooms across the United States. Defendant physicians who are vilified and goaded feel angry, frustrated, and helpless. No wonder—the courtroom environment is alien to us. We trained for years to become competent, knowledgeable practitioners of our specialty; we work hard every day to provide the best possible care; and we diligently keep up with advances in ObGyn medicine by reading the literature and attending continuing medical education conferences. But in the courtroom, attorneys make a pointed attempt to paint us as incompetent and uncaring—even malicious.

Moreover, customary rules of argumentation don’t apply. We can’t answer questions fully or correct misstatements that are implicit in certain questions. Judges often limit what we can say and what the jury is allowed to hear. Not only is the medical care we gave questioned—we are subject to attempts to discredit us personally. We’re asked questions about the most private aspects of our life: “What’s your income?” “Why were you divorced?” “What is the financial arrangement between you and your partners?” “Are you seeing—have you ever seen—a psychiatrist?”

Lawyers made the rules of the legal system by which we are forced to defend ourselves when we are sued, and they surely made them for their benefit. Those rules provide lawyers with immunity from having to reveal their conversations and memos, but don’t provide you with protection for conversations or other communications you have had with patients, partners, friends, risk managers, and hospital administrators. Only conversations with your lawyer are “privileged.”

Perhaps your greatest disadvantage when you are sued is that, most likely, this is going to be your first time in a courtroom. You haven’t had the chance to become familiar with the venue—the courtroom—or the tactics of cross-examination used by plaintiff attorneys.

Combine an accusation of malpractice and the need to defend yourself in an alien environment with rules made by and favoring lawyers that are foreign to you and that you cannot control—what a daunting prospect! Plaintiff attorneys take advantage of the situation to prey on defendants.

There are ways to defend yourself!

Did you go into an operating room or a delivery room for the first time without preparation or training? No! Likewise, don’t go into a courtroom unprepared.